Monthly Archives: March 2011

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It’s a subject that we’ve blogged about a lot: how applying aviation safety principles to medicine could revolutionize the practice of medicine and reduce the incidence of medical malpractice. (See earlier blog posts here and here).
Now Dr. James Bagian (whom we’ve previously blogged about here), a doctor and pilot, has co-authored a journal article about the specific lessons that medicine should be learning from aviation. You can read the article for yourself here. (H/t WSJ Health Blog). Unlike a lot of peer-reviewed journal articles, it’s on a level that’s completely accessible to the layperson. I hope to be able to comment on the article more extensively in the near future.

On March 11, the Consumer Product Safety Commission (CPSC), as part of the Consumer Product Safety Improvement Act passed in 2008, launched a new easily-searchable database of dangerous and defective products – SaferProducts.gov. (H/t Professor Bernabe). The new website allows consumers to register complaints that they have about product safety.
The products’ manufacturers then have ten days to respond and then both consumer complaint and company response are uploaded to the web unless CPSC finds some reason to determine that the consumer complaint is bogus.
Seems like a valuable resource, right? I mean, why shouldn’t you have access to this information before you shell out for some big ticket item or a toy for your child that you want to make sure is safe? The database gives you virtually real-time feedback on products; there’s no lag time where you could be oblivious to a product’s dangers while the government dithers about whether to order a recall.
But Republicans in Congress, led by Rep. Mike Pompeo, managed to yank funding for the website two weeks before it debuted, saying it will “drive jobs overseas,” without explaining how or why the website could conceivably have that effect. So the future of SaferProducts.gov is in doubt. Check it out now before Congressional Republicans get their way and you can no longer see what products might hurt you.

According to a recent study by the Accreditation Council for Graduate Medical Education, nearly two-thirds of the physicians who supervise medical residents doubt that a new regulation capping residents’ workdays at sixteen hours will reduce residents’ fatigue. (H/t WSJ Health Blog).
According to one of the doctors responsible for this survey, the survey’s respondents might doubt the effectiveness of cutting hours in reducing fatigue for a couple of reasons. First, the residents might not be less fatigued because they might use their time off to do something other than sleep. Second, residents who work fewer hours might rush more to cram all their work into a shorter day, leaving them more frazzled.
Overall, I think the medical profession is simply in denial about the issue of physician fatigue. As I blogged about a few weeks ago, a new study published in the Journal of the American College of Radiology shows that physician fatigue shows that fatigue sets in even over the course of an eight-hour (8:00 a.m.-4:00 p.m.) workday. By the end of an eight-hour shift, radiologists were twice as likely to make mistakes in reading a simple x-ray.
Doctors always protest that long hours are necessary for residents to learn all that they need to know. But residents are cash cows for teaching hospitals – their low salaries and the high-level tasks that they perform are very lucrative for hospitals. Reducing residents’ hours means that hospitals have to do more of their staffing with more senior doctors, whose salaries are much higher.
It’s time for medicine to come to grips with the problem of physician fatigue.

File it under news that no one is talking about but that everyone should be: a new study published in the American Journal of Obstetrics and Gynecology reveals that a new obstetric safety program implemented in several New York hospitals has reduced medical malpractice payouts in those hospitals by 99 percent!
That number is so large that it almost takes a minute for it to sink in. A 99 percent reduction in medical malpractice payouts. One more percentage point and there would have been a one hundred percent reduction in medical malpractice payouts, meaning that medical malpractice would have cost insurers absolutely nothing! Zero dollars and zero cents. And all of this was accomplished in the span of three years with the implementation of this new safety program.
Of course medical malpractice payouts are not really a good surrogate for patient safety; payouts might go down because the hospitals got better defense lawyers. Or because injured patients can’t find plaintiffs’ lawyers willing to take their cases.
But the study also suggests that patient safety improved just as much as the hospitals’ bottom lines. So-called “sentinel events” — avoidable deaths and serious injuries — zeroed out during the course of the study.
What were the magical elements in this obstetrics safety program that proved so shockingly effective at preventing birth injuries? Was it a bunch of new, costly high-tech gizmos?
Although the hospitals that participated in the study abandoned their whiteboards in favor of a new system of electronic communications, a lot of the program’s features were decidedly low-tech and addressed a lot of the basic reasons why doctors make mistakes.
For instance, the participating hospitals each added three more physician assistants to their staffs and a “laborist” (a new term for an OB-GYN who works full-time for a hospital, much like a “hospitalist” in internal medicine). These additional staff members helped reduce physician fatigue, a major cause of medical malpractice that we’ve blogged about a great deal, most recently here.
Another low-tech safety innovation was the hiring of a full-time patient safety nurse who was responsible for educating staff on patient safety and conducting emergency drills.
These additional staff members and the new computers cost money. Do you think that if damages for pain-and-suffering in a birth injury case, such as a cerebral palsy case, were capped at $250,000 that hospitals would bother investing in these new safety measures? Where would their incentive be?
Medical malpractice can be easily reduced. That we might see medical malpractice in one sector almost completely eliminated over the course of a few years is, however, something of great surprise and a great cause for hope.
You can read more about the study here: “Obstetricians take big steps to avoid malpractice” (Crain’s New York Business.com).

According to the Centers For Disease Control, the number of central line infections in hospital ICUs has dropped fifty-eight percent since 2001. A central line infection might not seem like a big deal, but they are extremely serious: between twelve and twenty-five percent of patients who contract a central line infection die as a result. These deaths are part of the 98,000 deaths that are caused annually by preventable medical errors.
But really there’s no reason why we can’t get the number of central line infections to zero, or some asymptotically low level.
As I’ve previously blogged about, virtually all central line infections could be eliminated if doctors and nurses followed the simple five-step procedure for properly inserting a central line. However, at least one-third of the time, medical staff skip at least one of the steps, putting the patient at risk for infection.
Insertion of central lines is one area where hospitals could definitely benefit from rigid adherence to medical checklists. As we’ve often blogged about, a World Health Organization study shows that the use of medical checklists can reduce surgical deaths by forty-seven percent and major complications by thirty-six percent. Yet most American hospitals still don’t require the use of checklists.

In a New York Times op-ed piece published last week, entitled “Treat the Patient, Not the CT Scan,” Dr. Abraham Verghese takes young doctors to task for their overreliance on sophisticated medical imaging procedures, such as CT scans.
Dr. Verghese hits on some points about the use of CT scans that are familiar to readers of this blog – the extremely high amounts of radiation that patients are exposed to by medical imaging (it now accounts for more than 50 percent of the radiation that Americans are exposed to) and the high price tag of such procedures (a huge driver of our health care costs, given how much cutting-edge medical imaging is overused).
But Dr. Verghese really hones in a point that would have Drs. Jesse Pines and Zachary Meisel (figures whom we’ve previously blogged about here) nodding in agreement: the overuse of medical imaging is both a cause of, and effect of, a deterioration in young doctors’ basic clinical skills.
Dr. Verghese relates the story of a woman who was admitted to the Emergency Room with seizures and breathing difficulties. Doctors instantly ordered a CT scan of her chest. It revealed she had massive breast tumors and the breast cancer had spread and caused secondary cancers.
Although the CT scan detected the cancer, Dr. Verghese believes that the overuse of CT scans may have led to its becoming so advanced without any medical intervention. Dr. Verghese writes:

In retrospect, though, her cancer should have been discovered long before the radiologist found it; before the emergency, the patient had been seen several times and at different places, for symptoms that were probably related to the cancer. I got to see the CT scan: the tumor masses in each breast were likely visible to the naked eye — and certainly to the hand. Yet they had never been noted.

Maybe instead of a conversation about capping damages in medical malpractice cases, we should be having a conversation about our overreliance on medical imaging, the massive amounts of radiation we are absorbing as a result of that overreliance and the cost of that overreliance – both in terms of health care quality and in dollars.

It’s a common refrain whenever drug makers are asked about the astronomical costs of some of their pills: the price of drugs reflects the billions of dollars of research and development that go into them. We hear the same refrain when drug makers get sued for selling dangerous and defective drugs: the drug makers complain that they should be entitled to some sort of immunity after spending billions of dollars developing the drug and getting FDA approval before bringing it to market.
However, as Timothy Noah revealed in an article in Slate this week, pharmaceutical companies spend nowhere near one billion dollars in bringing the typical drug to market. Big Pharma actually spends $55 million on R&D for the typical drug, according to a new study published by the London School of Economics.
So where did the $1 billion figure come from then?
Answer: It’s pharmaceutical-sponsored propaganda.
The $1 billion figure originally appeared in a 2003 study (that we’ll call the “Tufts study”) that was published in the Journal of Health Economics. The article’s lead researcher is from Tufts University and the article’s research was sponsored by the (drug company-funded) Tufts Center for the Study of Drug Development.
There are a number of methodological problems with the Tufts study. First of all, it was based off proprietary numbers that the drug companies supplied to study’s authors, that the researchers have not shared with others and that they themselves apparently made no effort to verify.
Another error with the study, a glaring one, is that the Tufts study considers basic “pure science” R&D that is funded by the government as a cost of drug development, even though it is not borne by any of the pharma companies and is, in fact, one hundred percent taxpayer-funded.
The Tufts study also ignores all of the tax breaks that pharma companies receive for R&D. When you factor in those tax breaks, the cost of R&D is reduced by thirty-nine percent.
Lastly, the Tufts study’s estimates of the costs of clinical trials and the amount of time that it takes to obtain FDA approval are flatly at odds with publicly-available government data. The Tufts study’s estimates of the costs of clinical trials are six times higher than data that’s available from the National Institutes of Health (NIH). The Tufts study’s estimate of the time it takes for a drug to get FDA approval – 7.5 years – is about twice what other data reveals. That’s no mean difference when a patent monopoly has a lifespan of twenty years.
Several months ago, there was a big controversy in the blogosphere about whether economists should adopt a code of professional ethics (they currently have none and many conflicts of interest in economics research go undisclosed). Matthew Yglesias had a great post on the top entitled, “Economists and Incentives.” The Tufts study, and the oft-repeated $1 billion pricetag for pharmaceutical R&D, suggests that it may be high time for such a code.

Law professor William Jacobson senses a tension, bordering on self-contradiction, in two ideas favored by conservatives: the repeal of the Affordable Care Act (what is often styled as “Obamacare”) and support for tort reform measures, such as H.R. 5, a bill that I’ve previously blogged about, that would cap, by federal law, the damages that can be awarded in medical malpractice lawsuits filed in state court and litigated under state medical malpractice laws. (H/t Volokh Conspiracy).
Wherein lies the contradiction? Well, conservatives are normally backers of states rights. They like to trumpet the Tenth Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Thus, they oppose the Affordable Care Act on the grounds that it exceeds the federal government’s powers to enact an individual health care mandate. They would have no constitutional objection to a state government enacting an identical mandate, but they believe that, under the Constitution, an individual mandate exceeds the federal government’s limited powers.
Lo and behold, when it comes to tort reform, conservatives’ qualms about the federal government’s powers vanish. There they favor the federal government intruding upon the administration of state medical malpractice law in state courts. Carrying the torch of tort reform, these same conservatives favor the imposition of a federal law capping pain-and-suffering damages in medical malpractice cases at a quarter of a million dollars.
They believe that Congress has the authority to pass such a law pursuant to its Commerce Clause powers; the same powers that they also say are not substantial enough to undergird the Affordable Care Act.
For consistency’s sake, congressional Republicans should jettison either their opposition to the Affordable Care Act or their support for capping damages in medical malpractice cases.

Over at Torts blog, Professor Bernabe has a great post on Snyder v. Phelps, the Supreme Court case decided this week that said the funeral protests of the Westboro Baptist Church are protected by the First Amendment. What does the First Amendment and constitutional law jurisprudence have to do with torts?
Well, lots, as Professor Bernabe points out. This case arose after the father of Lance Cpl. Matthew Snyder filed a lawsuit against the Westboro Baptist Church for money damages. The basis of that lawsuit was a tort action – intentional infliction of emotional distress. Torts isn’t all personal injury, you know.

AbnormalUse has a great and easily comprehensible review of last week’s Supreme Court preemption opinions. AbnormalUse manages to square the circle by reconciling Williamson v. Mazda and Geier v. Honda. If Gallivan, White & Boyd made up the Supreme Court, we’d probably see an even stronger pro-defense bias on the Court but the Court’s preemption jurisprudence would be a lot more lucid.

Based on a recent decision by the New Jersey Supreme Court, an employee engages in protected activity under the New Jersey Law Against Discrimination where she or he copies and takes company documents for the purpose of aiding the prosecution of a discrimination claim.

In Quinlan v. Curtiss-Wright Corporation, the plaintiff-employee, Joyce Quinlan, was an experienced human resources professional who had joined the defendant-employer, Curtiss-Wright Corporation, in 1980. By 1999, she had become the Executive Director of Human Resources. In 2003, the employer re-organized its HR department and, in doing so, promoted a male employee, Kenneth Lewis, with allegedly less experience to the position of Vice President. As a result, the plaintiff-employee became this particular male employee’s subordinate.

The plaintiff believed that she had been passed over for the Vice President position because she is a woman. At trial, for instance, Quinlan presented evidence that few women held senior managerial positions within the company; that women (including Quinlan herself) were commonly excluded from certain company events, even when the discussions related to the HR department; and that the CEO often golfed with Lewis.

Quinlan provided her attorneys with more than 1,800 pages of company documents, which she believed bolstered her case. In November 2003, counsel filed a complaint on plaintiff’s behalf alleging, among other claims, gender discrimination. Plaintiff’s counsel later produced to opposing counsel the company documents his client had assembled.

Several weeks after making this production, the plaintiff’s attorneys deposed Lewis and, during the course of that deposition, questioned him about his most recent performance appraisal, which allegedly rated him as needing improvement in several areas. Lewis claimed that he had never before seen the appraisal. Following this deposition, the company terminated Quinlan for allegedly continuing to copy confidential information.

In charging the jury, the trial court noted that there was a significant difference between the taking of the document and its use at the deposition:

[W]hile Joyce Quinlan’s conduct in copying and removing copies of documents is not protected and is conduct for which she could have been justifiably terminated, the conduct of her attorneys in using those documents in the process of prosecuting this lawsuit is protected activity and could not properly have been a determinative factor in terminating her. In other words, if you find that a determinative factor in Curtiss-Wright’s decision to terminate Joyce Quinlan was her attorneys’ use of any of the documents, including but not limited to [Mr. Lewis's performance appraisal], such a finding would be the basis of finding for Joyce Quinlan. On the other hand, if the real reason for her termination was her copying and removing the documents, including but not limited to [the performance appraisal], such a motive by Curtiss-Wright would not be actionable.

The jury ultimately found for the plaintiff-employee, awarding her approximately $4.2 million in back pay and front pay economic damages for her retaliation claim. The jury also found, by clear and convincing evidence, that the employer had intentionally engaged in unlawful conduct and, as a result, awarded approximately $4.5 million in punitive damages.

The Appellate Division found that the trial court had erred in its jury instruction and vacated the retaliation verdict. The New Jersey Supreme Court disagreed with the Appellate Division and reinstated the retaliation verdict. In so doing, the Court adopted a flexible, totality of the circumstances approach to decide whether an employee is privileged to take or to use documents belonging to the employer. The Court set forth seven factors:

1.How the employee obtained the document
2.With whom the employee shared the document
3.The nature and content of the document
4.Whether the taking of the document violated a company policy that is routinely enforced
5.The relevance of the document to the employee’s claim vs. whether its disclosure was unduly disruptive to the employer
6.The relevance of the document to the employee’s claim vs. whether the document was likely to be destroyed or lost
7.The broad remedial purpose of anti-discrimination laws and how permitting or precluding the use of the document will affect the legitimate rights of both employers and employees

Overall, given the nuances in cases like this, employees are well-advised to first meet with an attorney before deciding to take company documents.